Texas Can't Compel Speech from Vendors Selling to Schools

Last month, the Fifth Circuit Court of Appeals granted a preliminary injunction against Texas' attempt to prohibit sexually explicit material in schools. The 2023 statute required book sellers to review each book according to a complicated statutory scheme and designate it as “sexually explicit,” “sexually relevant,” or “no rating.” Then the vendors must submit a list of their “sexually explicit” or “sexually relevant” books to the state and post it on their websites.  Any “sexually explicit” books on the list must be removed from all Texas schools. Check-outs of “sexually relevant” books require parental permission.

Several vendors quite predictably sued, but they did not make the usual claim of infringement of their rights to express opinions or students' rights to receive information. Rather, they argued that the state's regulatory scheme unconstitutionally compelled them to adopt and express the state's opinion both in their listing and on their websites.  

The First Circuit panel, including some traditionally conservative judges, agreed and granted an injunction against enforcement of the statute. The Court found that “the law requires Plaintiffs to ‘either speak as the State demands’ or suffer the consequences."  Such a requirement compelled the vendors to adopt government speech in violation of their First Amendment rights.

The controversy over sexual material in school libraries and parents' rights to control what their children read is not going away any time soon. Both the state and parents have recognized rights to control those matters. However, they will have to find ways of resolving those issues without infringing on the First Amendment rights of others involved in the process.